Howard Leibovich

The plaintiffs brought a motion to enforce a prior order prohibiting the defendants from dealing with a property, arguing that the defendants' default on Minutes of Settlement allowed them to continue the action under Rule 49.09(b).

The plaintiffs also sought a contempt order.

The third-party purchasers of the property sought to intervene.

The court dismissed the motion to intervene, finding it would not make a useful contribution.

The court also dismissed the plaintiffs' motion, holding that Rule 49.09(b) does not apply to negotiated Minutes of Settlement, and that the prior prohibition order had been set aside and was no longer in effect.

The plaintiffs' remedy was to move for judgment on the settlement.

The applicant sought a stay of charges for unreasonable delay under section 11(b) of the Charter, arguing the 42-month delay exceeded the 30-month Jordan threshold.

The Crown contended that defence delay and the COVID-19 pandemic, an exceptional circumstance, reduced the net delay below the threshold.

The court dismissed the application, finding that after deducting 42 days for defence unavailability in setting the preliminary inquiry and 8 months for the defence's waiver of 11(b) rights, plus 5.5 months for pandemic-related delay, the net delay was approximately 27 months and one week, which was reasonable and below the presumptive ceiling.

The two accused were charged with sexual assault causing bodily harm following an incident in a van outside a party.

The Crown alleged the complainant was highly intoxicated, blacked out, and did not consent or lacked the capacity to consent to sexual intercourse with both men.

The accused gave statements to police claiming the sexual activity was consensual.

The trial judge rejected the accuseds' statements but found the complainant's evidence regarding her level of intoxication and blackouts insufficiently reliable to prove lack of subjective consent or lack of capacity beyond a reasonable doubt.

Both accused were acquitted.

The offender pleaded guilty to possessing fentanyl for the purpose of trafficking.

The Crown sought a four-year penitentiary sentence, while the defence sought a conditional sentence.

The court noted the offender's lengthy criminal record and the significant amount of fentanyl involved, but also recognized his exceptional rehabilitative efforts and success in overcoming a long-standing drug addiction.

Applying recent appellate jurisprudence, the court found that returning the offender to jail would undermine his rehabilitation and serve little useful purpose.

A conditional sentence of two years less a day was imposed, along with a 10-year weapons prohibition and a DNA order.

The applicant corporation sought to rectify a directors' resolution that declared capital dividends, after discovering its accountant had miscalculated the available balance in the capital dividend account, resulting in unintended tax consequences.

The court dismissed the application, finding that the resolution accurately recorded the parties' agreement to issue the specific dividend amounts recommended by the accountant.

Applying the Supreme Court's decision in Fairmont Hotels, the court held that rectification cannot be used to retroactively amend an agreement merely to avoid unanticipated tax liabilities, and noted the applicant had alternative remedies available.

The accused, charged with impaired driving causing death, brought a Charter s. 8 application to exclude blood alcohol evidence obtained via a search warrant.

The accused argued the Information to Obtain (ITO) contained misleading statements and that the police unlawfully seized his blood by placing a seal on a vial at the hospital before obtaining the warrant.

The court conducted a sub-facial review of the ITO, excised minor errors, and found the amplified record still provided reasonable grounds to issue the warrant.

The court also held, following appellate precedent, that placing a seal on a blood vial taken for medical purposes and left in the hospital's control did not constitute an unreasonable seizure.

The application was dismissed.

The offender was convicted of sexually abusing his stepdaughter between the ages of four and twelve.

The Crown sought a seven-year penitentiary sentence, while the defence sought a conditional sentence or reformatory term, citing the offender's mental health issues, lack of criminal record, and the historical nature of the offences.

Applying the principles from R. v. Friesen, the court emphasized denunciation and deterrence for sexual offences against children.

The court sentenced the offender to five years' imprisonment, balancing the profound harm caused to the victim against the offender's mental illness and rehabilitative efforts.

The applicant sought a bail review after being denied bail by a Justice of the Peace following charges related to a loaded firearm found in her car.

The applicant argued errors in the initial decision and a material change in circumstances due to the COVID-19 pandemic and a new release plan.

The Crown conceded the pandemic as a material change, allowing a de novo assessment.

The court considered the applicant's extensive criminal record, history of breaching court orders, the seriousness of the current charges (including being in breach of a conditional sentence at the time of the offence), and the inadequacy of the proposed surety and release plan.

The court dismissed the application, finding that the applicant failed to meet her onus on primary, secondary, and tertiary grounds, and that releasing her would undermine confidence in the administration of justice, even considering the pandemic.

Dante Johnson, arrested for gun and drug offences, sought a bail review under s. 520 of the Criminal Code after being detained on secondary and tertiary grounds.

He asserted two material changes in circumstances: a new, suitable surety (his paternal grandmother) and the COVID-19 pandemic.

The Crown conceded COVID-19 as a material change but opposed release.

The court conducted a de novo assessment, finding the new surety addressed the Justice of the Peace's concerns regarding supervision.

Despite the seriousness of the offences and strength of the Crown's case, the court determined that a reasonable person, informed of Charter values and the specific circumstances (accused's youth, first adult charges, strong release plan), would not lose confidence in the administration of justice.

Bail was granted with strict conditions.

The defendant, charged with first-degree murder, brought a pre-trial motion (voir dire) to exclude a statement given to police, arguing a violation of his s.10(b) Charter right to counsel.

The police denied his request to contact his stepmother to arrange counsel of choice, instead directing him to duty counsel.

The court found that the police officer's denial was a clear violation of the well-established duty to facilitate access to counsel, even through a third party, and that the defendant was not reasonably diligent in renewing his request because the officer's initial response was a clear "no." Applying the R. v. Grant factors under s.24(2) of the Charter, the court found the breach serious, the impact on the defendant's Charter-protected interests significant (as it affected his ability to make an informed choice with trusted counsel), and the societal interest in adjudication on the merits did not outweigh the breach given the statement's questionable necessity.

Consequently, the January 25, 2018 statement was excluded.

The plaintiff, MEJJ Enterprises Inc., sought costs after largely succeeding in its claim for unpaid property taxes and lease payments and successfully defending a $5,000,000 counterclaim alleging failure to build a promised structure.

The court awarded costs on a partial indemnity basis, rejecting the plaintiff's request for substantial indemnity due to a lack of reprehensible conduct by the defendants.

The court significantly reduced the plaintiff's requested costs due to issues with the bill of costs, including duplication from multiple counsel and lack of itemization, and excluded costs related to voluntary mediation.

The court found that both parties contributed to the decade-long delay in the proceedings but did not reduce the costs award further on that basis, noting the plaintiff's bill had already been adjusted for duplication.

The applicant brought a motion for interim spousal support.

The parties disputed the separation date, the applicant's employment status (fired vs. quit), and the respondent's true income.

The court found the applicant established a prima facie case for entitlement, noting her financial disadvantage post-separation and the prior "homemade" interim support arrangement.

The court imputed income to the respondent based on corporate expenses and benefits, finding his reported salary did not reflect his true financial benefit.

Interim spousal support was ordered for the applicant.

The applicant sought leave to cross-examine the affiant of information to obtain (ITO) documents for tracking, general, and search warrants, arguing the search was unreasonable and evidence should be excluded.

The court granted leave for cross-examination on six specific areas concerning potential misstatements, omissions, or exaggerations in the ITOs, finding a reasonable likelihood that such cross-examination would assist in determining the grounds for warrant issuance.

Leave was denied for other areas deemed facial challenges or not likely to assist.

The issue of cross-examination regarding a confidential informant was deferred pending a judicial summary.

The offender was convicted of child luring and obtaining sexual services from a person under 18 after communicating with an undercover police officer posing as a 14-year-old escort.

At sentencing, the court applied the Kienapple principle to stay one of the luring counts.

The court then considered a Charter challenge to the one-year mandatory minimum sentence under s. 172.1(2)(a) of the Criminal Code.

Finding that the mandatory minimum would result in a grossly disproportionate sentence in reasonably foreseeable circumstances, the court struck it down under s. 12 of the Charter.

The offender was sentenced to 7 months' imprisonment concurrent on the remaining counts, reflecting his youth, rehabilitation prospects, and lack of prior record.

The plaintiff landlord sued the defendant tenants for unpaid rent and property taxes under a commercial lease for a golf driving range.

The defendants counterclaimed, alleging the landlord breached an oral agreement to finance and build a year-round deck structure, and breached the duty of good faith by orchestrating their default.

The court found that the parol evidence rule did not bar consideration of unsigned collateral agreements, but concluded the evidence did not support the defendants' claim that the landlord promised to pay for the deck.

The counterclaim was dismissed, and the plaintiff was awarded $63,000 for unpaid rent and taxes.

Arian Faroughi, convicted of communicating with persons believed to be underage for sexual purposes, brought an application to stay the charges due to police entrapment and a violation of his section 7 Charter rights.

The applicant argued that police inducement occurred through persistent texting, exploitation of his nervousness, and the use of a phone number previously associated with other escort ads.

The Crown contended there was no inducement and the applicant was a willing participant.

The court found that the police were acting under a bona fide inquiry and did not induce the applicant, applying the objective test from R. v. Mack.

The court determined that an average person in the applicant's position would not have been induced, and the police's oversight regarding the phone number was harmless and not a deliberate act of entrapment.

The section 7 disclosure argument was also dismissed.

Maneet Bajwa was convicted of six gun-related offences, primarily trafficking firearms.

The sentencing hearing addressed the constitutionality of the mandatory minimum sentence under s. 99(2) of the Criminal Code.

The court found that a fit sentence would be 12 months, and the three-year mandatory minimum would be grossly disproportionate, thus violating s. 12 of the Charter.

The court imposed a conditional sentence of two years less a day, with credit for pre-sentence custody, to be served in the community, along with a lifetime weapons prohibition and DNA order.

The plaintiff brought a motion for a certificate of pending litigation and disclosure of real estate transactions regarding a property he previously occupied.

The defendant second mortgagee brought a cross-motion to dismiss the action against it and for a judicial sale of the property.

The court dismissed the plaintiff's motion, finding damages were an adequate remedy and the plaintiff was attempting to relitigate a prior default judgment in a mortgage enforcement action.

The court granted the defendant's motion, dismissing the action against it on the basis of res judicata and ordering a judicial sale of the property.

The parties entered into an agreement of purchase and sale for a residential property.

Prior to closing, the property sustained water damage from a flooded basement.

The vendors delayed notifying the purchasers until the day before closing and only offered an opportunity to inspect on the closing date.

Both parties alleged the other breached the agreement when the transaction failed to close.

The court held that the vendors breached the agreement by failing to satisfy implied terms requiring timely notice and a meaningful opportunity to inspect, and by acting in bad faith.

The purchasers were entitled to the return of their deposit.

The accused was charged with firearms offences after purchasing two Glock handguns and transferring them to an unauthorized individual.

At trial, she admitted the facts but raised the defence of duress, claiming she was threatened by two masked men who demanded she buy the guns.

The court rejected her evidence as illogical and found that, even if believed, she had a safe avenue of escape and there was no close temporal connection between the threat and the harm.

The accused was found guilty on all counts.